UTTAR PRADESH HUMAN RIGHTS

COMMISSION

PROJECT ON

PUBLIC INTEREST
LITIGATION
An effective remedy in
reference to age
Submitted by : Pratyush Gaurav

DATE: 1/6/2017
 Over the years, Public interest litigation has become one of the important tools of

legal aid and has served to bring justice in many cases involving social and environmental

concerns. Under public interest litigation, any public-spirited individual or group can move

the court of law, under article 226 of constitution for High Courts and article 32 for Supreme

Court, in case of breach of any fundamental right, to seek judicial redressed. Public Interest

Litigation is a form of writ petition which can be filed by anybody, even if he or she is not

directly affected by the perceived injustice. This has enabled environmentally- conscious,

public-spirited individuals or groups, which are not an aggrieved party, to have easy access

to the highest court of the nation. Public interest litigations become a collaborative effort

between petitioner, state or public authority and the court, to redress the breach of

fundamental right. The Supreme Court has played a pro-active role in enhancing the use of

Public interest litigations. It has simplified technical procedures to encourage more

grievances to be addressed through the mechanism. It has relaxed the requirement of formal

writ to seek redress. Any member the public can move the court for social cause even

through a letter, which would be entertained as a writ petition by the court.

The Indian Public interest litigation is improved version of public interest litigation

of USA. According to ‘Ford foundation’ of USA’ “Public Interest Law is the name that has

recently been given to efforts that provide legal representation to previous unrepresented

group and interests. Such groups and interests include the proper environmentalist’s

consumers, racial and ethnic minorities and others.”1

1. http.//www.legalserviceinindia.com.
 The first reported case of public interest litigation in 1979 focused on the inhuman

conditions of prisons and under trial prisoners. In Hussaniara Khatoon v. State of Bihar 2, the

public interest litigation was filed by advocate on the basis of news item published in the

Indian Express, highlighting the plight of thousands of under trial prisoners languishing in

various jails in Bihar. These proceeding led to the release of more than 40000 under trials

light to speedy justice emerged as a basic fundamental right which had been denied to these

prisoners. The same set pattern was adopted in subsequent cases.

Public interest litigation means a legal action initiated in court of law for the

enforcement of public interest or general interest in which the public or class of community

have pecuniary interest or some interest by which their legal rights and liabilities are

affected.3

Public interest litigation is meant for enforcement of fundamental and other legal

rights of people who are poor, weak, ignorant of legal redresses system or otherwise in

disadvantageous positions, due to their social or economic background. Such litigation can

be initiated only for redresses of public injury, enforcement of public duty or indicating

interest of public nature. It is necessary that petition is not filed for personal gain or private

motive or for other extraneous consideration and is filed bonafide in public interest.

Evolution of Public Interest Litigation

The courts exercising their power of judicial review found to its dismay that the

poorest of poor, depraved, illiterate, urban and rural unorganized labour sector, women,

children, handicapped by ‘ignorance, indigence and illiteracy’ and other downtrodden have

either no access to justice or had been denied justice. A new branch of proceedings know as

‘Social Interest Litigation’ or ‘Public Interest Litigation’ was evolved with a view to render

2. Black’s Law Dictionary.

3. Guruvayur Devaswom Managing Committee v. C.K. Rajan, AIR 2004 SC 561.

complete justice to aforementioned classes of persons. It expanded its wings or course of

time. The courts in Pro bono Publico granted relief to the inmates of prisons, provided legal

aid, directed speedy trial, maintenance of human dignity and covered several other areas.

Pro bono Publico constituted a significant state in present day judicial system. They

provided dockets with much greater responsibility for rendering the concept of justice

available to disadvantaged sections of society. Public interest litigation has come to stay and

its necessity can not be overemphasized. The court in place of disinterested and

dispassionate adjudicator becomes active participant in dispensation of justice.

But with the passage of time, things started taking different shapes. The process was

sometimes abused. Proceedings were initiated in the name of public interest litigation for

ventilating private dispute. Some petitions were publicity oriented.4

Object of Public Interest Litigation

Public Interest Litigation which has now come to occupy an important field in

administration of law should not be ‘Publicity Interest Litigation’ or ‘Private Interest

Litigation’ or ‘Politics Interest Litigation’. There must be real and genuine public interest

involved in litigation and it cannot be invoked by person or body of persons to further his or

their personal causes or satisfy his or their personal grudge and enmity. Court of justice

should not be allowed to be polluted by unscrupulous litigants by resorting to extra ordinary

jurisdiction. A person acting bonafide and having sufficient interest proceeding of public

interest litigation will alone have locus standi can approach the courts to wide out violation

fundamental rights and genuine infraction of statutory provisions, but not for personal gain

or private profit or political motive or any oblique consideration. These aspects were

highlighted by Apex of Investigation court in Janta Dal v. H.S. Chaudhary 5 & Kazi Landup

4. AIR 1993 SC 892.

5. AIR 1994 SCW 2190.

Dorji v. Central Bureau of investigation.6 A writ petitioner who comes to the court for relief

in public interest must come not only with clean hands like any other writ petitioner but also

with clean heart, clean mind and clean objective.7

It is necessary to take note of meaning of public interest litigation. Public interest a

matter of public or general interest does not mean that which is interesting as gratifying

curiosity or a love of information or amusement but that in which a class of community have

pecuniary interest or some interest by which their legal rights and liabilities are affected.8

Concept of Public Interest Litigation

The administrative order on the petition filed by the petitioners, in public interest

litigation, could not disentitle the petitioners of hearing and matter should have been

considered by the court. In this connection, it may be noted that guidelines to be followed

for entertaining letters/petitions received in court as ‘public interest litigation’ were

circulated by hon’ble Supreme Court and on examination by public interest litigation cell it

was found that as per the guidelines, the petition would not be cognizable as public interest

litigation. There was no doubt that some letters/petitions sent to High Court can well be

taken cognizance of and entertained as public interest litigation. But as to keep check on

frivolous letter/petitions some guidelines have been evolved, in the light of which a cell has

been constituted which scrutinizes the letters or petitions received as to whether they fall in

the category of public interest litigation or not. If the cell comes to the conclusion that the

subject matter was not covered by guidelines, it will then not be entertained as public

interest litigation. The guidelines as provided are below –

6. Ramyas Foundation v. UOI, AIR 1993 SC 852 & K.P. Srinivas v. R.M. Premchand, (1994)

6 SCC 620.

7. Strouds Judicial Dictionary, (IV Edn.).

8. (1991) SCC 598 at 604.

1. Bonded labour matter

2. Neglected children

3. Non-payment of minimum wages to workers and exploitation of casual workers and

complaints of violation of Labour Law.

4. Petitions from jails complaining of harassment, for premature release and seeking

release after having completed 14 years in jail, death in jail, released on personal

bond, speedy trial as a right.

5. Petitions against police for refusing to register a case, harassment by police and

death in police custody.

6. Petitions against atrocities on women, in particular harassment of bride, bride

burning, rape, murder and kidnapping etc.

7. Petitions pertaining to environmental pollution, disturbances of ecological balance,

drugs, food adulteration, maintenance of heritage and culture, antiques, forest and

wild life and other matters of public importance.

8. Petitions from riot victims.

9. Petitions complaining of harassment or torture of villagers by co-villagers or by

police from persons belonging to SC & STs and economically backward classes.

10. Family Pension.

Matters which were not to be entertained as public interest litigation are indicated as below-

1. Landlord-Tenant matters

2. Service matter and those pertaining to pension and gratuity.

3. Administration to medical and other educational institutions.

4. Petitions for early hearing of cases pending in High Courts and Subordinate Courts.

5. Complaints against Central/State Government Department.

Is there a connection between Public Interest Litigation and Fundamental Rights

One should be able to file public interest litigation whenever there is public interest

that needs to be addressed. There does not have to be a violation of specific fundamental

right.

In Janta Dal v. H.S. Chowdhary10, the operative part of judgment is:

Only a person acting bonafide and having sufficient interest in proceeding of public interest

litigation will alone have locus standi and can approach the court to wipe out the tears of

poor and needy, suffering from violation of their fundamental rights, but not a person for

personal gain or private profit or political motive or any oblique consideration. Similarly,

vexatious petition under the colour of Public Interest Litigation brought before the court for

vindicating any personal grievance, deserves rejection at the threshold.

In another case, where court says ‘such litigation can not per se on behalf of poor and

downtrodden, unless the court is satisfied that there has been violation of article 21 and

persons adversely affected are unable to approach the court.’11

The strange thing is that the Supreme Court seems have just quietly gone from

allowing public interest litigations only been there is an accompanying fundamental right

infraction to allow public interest litigations even without fundamental right infractions.

If all Public interest litigations were relating to fundamental rights, then all should

fall within constitution field. But the number of search hits for two are different with first

being greater, showing that Public Interest Litigations are not necessarily for the

enforcement of fundamental rights.12

10.(1992) 4 SCC 305.

11. Balco Employees Union v. UOI, (2002)2 SCC 333.

12. Ashok kumar Pandey v. State of W.B.

1943) 318 U.S. 490 (495); R. v. Lewisham Guardians, (1897) 1 Q.B. 498; Chiranjit v. Union

of India, (1950) SCR 869; Rao Bahadur v. State of U.P., (1953) SCR 1188 (1202).

While in U.K., the foregoing rule is known as the rule of locus standi or standing of the

Petitioner before the court, who complains of a violation of his human right. While this rule

still applies in the generality of cases, an exception has been introduced in the case of laws

which affect the public in generality, but the persons who are directly affected are not likely

to come to Court to assert their rights. In such cases, an association or an individual has been

allowed to fight for the public cause and challenge the constitutionality of the law or order,

through the Petitioner may not be able to show that he has been directly injured or affected

by it.15 He may move the Court for enforcement of a public right provided he is not a mere

busybody, but a person having a ‘reasonable concern with the matter’ to which his

application relates.16 The doctrine of ‘public interest litigation’, so evolved, has been

describe by the house of Lords itself as a ‘change in legal policy’,- even though the change

started by the modest process of liberalizing the meaning of the expression ‘person

aggrieved’17 or ‘sufficient interest’18

In U.S.A., it has been held that where a fundamental right guaranteed by the First

Amendment to the Constitution is clearly and directly violated by a statute, society itself has

an interest to challenge the statute to maintain the guaranteed right, so that in such a case a

person may be allowed to move the Court even though the applicant himself has not been

15. Blackburn v. A.G., (1971) 2 All ER 1830 (1833) C.A.; R.v. Greater L.C.C., (1976) 3 All
ER 184 (C.A.).
16. I.R.C. v. National Fed., (1981) 2 All ER 93 (104, 116) (HL); R.v.H.M,. Treasury; (1985)
1 All ER 589 (595) C.A.
17. A.G. Gambia v. Pierre, (1961) AC 617.
18. R. v. H.M. Treasury, (1985) 1 All ER 589 (595) C.A.
directly affected by the statute.19

While in India, the principle behind this doctrine was thus explained by the Indian Supreme

Court: 20

“…Where a legal wrong or a legal injury is caused to a person or to a determinate

class of persons by reason of violation of any constitutional or legal right or any burden is

imposed in contravention of any constitutional or legal provision or without authority of law

or any such legal wrong or legal injury or illegal burden is threatened and such person or

determinate class of persons is by reason of poverty, helplessness or disability on socially or

economically disadvantaged position, unable to approach the court for relief, any member of

the public or social action group can maintain an application for an appropriate direction,

order or writ in the High Court under article 226 and in case of breach of any fundamental

right of such person or class of persons, in this court under article 32 seeking judicial redress

for the legal wrong or injury caused to such person or determinate class of persons.”21

In this new era of public interest litigation, the Court has not only done away with

19. Secy. of State v. Munson, (1984) 467 U.S. 947 (956-57); Schaumberg v. Citizens, (1980)

444 U.S. 620 (634).

20. Gupta v. Union of India, AIR 1982 SC 149 (para: 17); Nakara v. Union of India, AIR

1983 SC 130 (para. 64).

21. S.P. Gupta v. Union of India, AIR 1982 SC 149 (para: 17); Nakara v. Union of India,

AIR 1983 SC 130 (para. 64).

the orthodox bar of locus standi (i.e., the status of the litigant), 22 but also the law of

procedure, holding that in this jurisdiction the Court can be moved even by a letter 23 the

ordinary process of a petition supported by affidavit. As to rules of evidence, again, enter

into disputed questions of fact or take evidence beyond affidavit. But in a public interest

case, the Court may appoint a commission to gather evidence, where the poor and the

disadvantaged people who are directly affected are not in a position to place before the

Court the relevant materials.24

The Supreme Court has taken the provision in article 32 to impose on itself “a
25 26
constitutional obligation to protect the fundamental rights of the people”; and “it is in

realization of this constitutional obligation that this Court has innovated new methods and

rights, particularly in the case of the poor and the disadvantaged who are denied their basic

22. Cf. Ferlilizer Corpn. v Union of India, A. 1981 SC 344 (para. 48-50); Bar Council v.

Dabholkar, A. 1975 SC 2098 (para. 52); see also A.R. Antulay v. R.S. Nayak, AIR 1988 SC

1531; DAV College v. State of Punjab, (1971) 2 SCC 261 : AIR 1971 SC 1731; Subhash

Kumar V. State of Bihar, AIR 1991 SC 420 (para 7-8) : (1991) 1 SCC 598; Kshetriya

Pradushan Mukti Sangharsh Samiti v. State of U.P., AIR 1990 SC 2060 : (1990) 4 SCC 449;

Gaurav Jain v. Union of India. (1997) 8 SCC 114 (para 114) : AIR 1997 SC 3021.

23. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

24. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

25. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

26. M.C.Mehta v. Union of India, (1987) 1 SCC 395 (405). [Such duty of Courts has been

evoled in Lesotho, from a statutory guarantee of human rights: Law Soc. V. Prime Minister,

(1986) LRC (Const.) 481 (495) see also Min. v. Bickle, (1985) LRC 755 (766) (Zimbabwe)].
human rights and to whom freedom and liberty have no meaning”.27 One of these new

strategies for safeguarding the human rights in respect of the weaker section of the

community is the doctrine of public interest litigation, which we have just seen. The Court

before which such a trial pending has authority to grant permissions to press, after weighing

the competing interest between right of the press and right of authorities prohibiting such an

interview.28

The doctrine of public interest litigation has been applied in New Zealand.29

In Canada, the Supreme Court is progressing gradually towards the public interest doctrine,
30 31
the latest view being that may person may challenge the validity of a law for

contravention of a Charter right, if he has a genuine interest as a citizen in the validity of the

legislation, and there is no other reasonable and effective manner in which the issue may be

brought before the Court, 32 even though he may not be directly affected by the legislation.

Not only have the Courts expanded the jurisdiction to enforce human rights by

innovating the doctrine of ‘public interest’ as regards the Petitioner, the category of the

Respondent has similarly been enlarged by applying the doctrine of ‘State action’.

27. State, through Supdt., Central Jail, New Delhi v. Charulata Joshi and another, AIR 1999

SC 1379.

28. Finnigan V. N.Z.R.F.U., (1986) LRC (Const.) 877 (844); On the other hand, in Nigeria,

the Supreme Court has refused to introduce any modern innovation of the doctrine of locus

standi on power to the determination of any question as to the civil rights and obligations of

the litigant [Thomas v. Olufosoye, (1987) LRC (Const.) 659 (670,672,679) Nigeria].

29. Thorson v. A.G., (1975) :SCR 18; Nova Scotia V. McNail, (1976) 2 SCR 265.

30. Min. of Justice v. Borowski, (1981) 2 SCR 575 (Can.).

31. Min. of Justice v. Borowski, (1981) 2 SCR 575 (Can.)

32. Lugar v. Edmondson, (1982) 457 U.S.922.

 Suffice it to say for the present that the doctrine of ‘State action’ had its origin in the

U.S.A, nearly a century after the adoption of its Constitution while the First Amendment

(1791) was couched in the form of a prohibition against the Legislature alone (by using the

word ‘Congress’), the 14th Amendment adopted in 1869, extended the prohibition in the “due

process”33 and “equal protection’, 34

clauses to the ‘State’. In interpreting the word ‘State’ in

these clauses, the Supreme Court first held that it included all the organs and acts of the

State- legislative, executive and judicial.35

Before long, however, it was realized that in order to be effective, the Fundamental

Rights should be enforced not only against the acts of the officers of the State but also its

“agents”.36 An “agent” was a person who acted in the name of and for the State or is clothed

with the powers of the State,37 or endowed with governmental functions.38 Gradually, the

doctrine has come to be applied even to acts of a private person or body,39 where its action is

supported by the Government even without legislative sanction or in abuse of its legislative

33. Strauder v. W. Virginia, (1879) 100 U.S. 303.

34. Strauder v. W. Virginia, (1879) 100 U.S. 303.

35. Ex parts Virginia, (1880) 100 U.S. 339 (347); Pennsylvania v. Board of Trusta, (1957)

353 U.S. 230.

36. Ex parts Virginia, (1880) 100 U.S. 339 (347); Pennsylvania v. Board of Trusta, (1957)

353 U.S. 230; Home Telephone Co. v. Los Angeles, (1913) 227 U.S. 278 (286); Steele v.

L.N.R., (1944) 323 U.S. 192.

37. Evans v. Newton, (1966) 382 U.S. 296; Blum v. Yaretsky, (1982) 457 U.S. 991 (1011).

38. Cf. Pruneyyard Shopping Centre v. robins, (1980) 447 U.S, 74 (85-87)

39. U.S. v. Classic, (1941) 313 U.S. 299; Screws v. U.S., (1945) 325 U.S. 91.
authority; 40 or when the state has become involved in such private action; 41 such as joint

participation of state officials with a private person in violating the petitioner’s rights; 42 or

when the State has coerced or encouraged, overtly or covertly, the private act complained

of.43 Even a State constitutional provision has been regarded as the support of a law.44

The test to be applied is whether the infringement of the Petitioner’s right is “fairly

attributable” to the State.45

The foregoing principles have been applied to the guarantee against discrimination in

the matter of election, in the 15th Amendment (1870) as well.46

In India, the doctrine of State action has a wider application than in the U.S.A.

because of the difference in the text of the Constitution.

The essence of the doctrine is that the State cannot get rid of constitutional

limitations or restraints by simply delegating its powers or functions to some private

40. Reitman v. Mulkey, (1967) 387 U.S. 369; Burton v. E.P.A., (1961) 391 U.S. 715;

Sniadach v. N.G.F., (1975) 419 U.S. 601.

41. Adickes v. Kress, (1970) 398 U.S. 144 (152, 202); Lugar v. Edmondson, (1982) 457 U.S.

922 (937, 941); Blum v. Yaretsky, (1982) 457 U.S. 991 (1004).

42. Adickes v. Kress, (1970) 398 U.S. 144 (152, 202); Lugar v. Edmondson, (1982) 457 U.S.

922 (937, 941); Blum v. Yaretsky, (1982) 457 U.S. 991 (1004).

43. Cf. Pruneyard Shopping Centre v. Robins, (1980) 447 U.S. 74 (85-87).

44. Adickes v. Kress, (1970) 398 U.S. 144 (152, 202); Lugar v. Cf Rendell-Baker v. Kohn,

Edmondson, (1982) 457 U.S. 922 (937, 941); Blum v. Yetsky, ar (1982) 457 U.S. 991 (1004);

(1982) 457 U.S. 830 (838).

45. Smith v. Allwright, (1944) 321 U.S. 649; Terry v. Adams, (1953) 345 U.S. 461.

46. Evans v. Newton, (1966) 382 U.S. 296.

individual or group; hence, since such a person acts as the agent or the instrumentality of the

State, he must be subject to the same limitations, such as the Fundamental Rights, that the

Constitution impose upon the State itself.47 The doctrine would reach not only an ‘agent’ of

the State, but even lessee from the agent, if the involvement or participation of the State

(even by inaction) in the lessee’s acts is established.48

But in the U.S.A., the doctrine of State action was originally confined to the

application of the 14th and 15th Amendments. The first Amendment rights, e.g., freedom of

speech, assembly or religion, were held to be available only against infringement by the
49
Government, and not by agents of the Government, until the First amendment (which is

addressed to the ‘Congress’) came to be enforced against the States through the 14th

Amendment.50 In short, action against a ‘creature of the State’ for infringement of a First

Amendment right came to be maintainable only where such infringement also violated the

47. Burton v. W.P.A., (1961) 365 U.S. 715.

48. Cf Rendell-Baker v. Kohn,. (1982) 457 U.S. 830 (838).

49. West Virginia State Bd. Of Education v. Barnette, (1943) 319 U.S. 624 (637, 639);

Everon v. Bd. Of Education, (1947) 330 U.S. 1 (13-14); McCollum. Bd. Of Education v,

(1948) 333 U.S. 203.

50. West Virginia State Bd. Of Education v. Barnette, (1943) 319 U.S. 624 (637, 639);

Everon v. Bd. Of Education, (1947) 330 U.S. 1 (13-14); McCollum v. Bd. Of Education,

(1948) 333 U.S. 203.

due process51 or the equal protection guarantee of the 14 th Amendment.52 It is through this

indirect process that the First Amendment rights have been enforced against a Board of
53 54 55
Education; or the trustee of a private testator; a society organizing a public fair, and

the like.

In the federal area also, the First Amendment rights have been applied against agents

of the government through the due process clause of the fifth Amendment.56

In India, however, the Supreme Court had an easier task in introducing the doctrine

of ‘State action’ because (i) most of the Fundamental Rights included in Part III of the

Constitution are addressed to the ‘State’, and (ii) Part III starts with the definition of the

word ‘State’ in article 12, which includes ‘other authorities’. By a liberal interpretation of

this word ‘authority’, the Court has made the Fundamental Rights enforceable against

numerous private persons or bodies, when they might be regarded as ‘agency’ or

instrumentality’ of the State, by applying certain tests laid down by the Court.

These tests, which will be more fully discussed hereafter, include the following:

51. Adickes v. Kress, (1970) 398 U.S. 144 (152, 202); Lugar v. Edmondson, (1982) 457 U.S.

922 (937, 941); Blum v. Yaretsky, (1982) 457 U.S. 991 (1004).

52. West Virginia State Bd. Of Education v. Barnette, (1943) 319 U.S. 624 (637, 639);

Everon v. Bd. Of Education, (1947) 330 U.S. 1 (13-14); McCollum v. Bd. Of Education,

(1948) 333 U.S. 203.

53. Evans v. Newton, (1966) 382 U.S. 296.

54. Heffron v. Iskcon, (1981) 452 U.S. 640 (642).

55. Liberman v. Schesventer, (1978) 447 F. Supp. 1355; Iskcon v. Schmidt, (1981) 523 F.

Supp. 1303.

56. Rajasthan S.E. Bd. V. Mohan, A. 1967 SC 1856.

(a) Where it is clothed with statutory power.57

(b) Where the Government exercises control over the management and policies of the

private body.58

(c) Where it has been granted monopoly of a business by the State.59

(d) Where it exercises functions which would normally be performed by the State.60

(e) Where the authority has been set up for administering a statute, 61 or where statutory

duties are imposed on it.62

(f) When the company is owned or substantially given financial assistance by the

Government.63

57.Sukhdev v. Bhagatram, A. 1975 SC 1331; Jaitla v. Commr., (1985) 1 S.L.R. 505 (para.8)

SC.

58. C.I.W.C. v. Brojo, A. 1986 SC 1371; (paras. 23, 24, 69); Ramana v. I.A.A.I., A. 1979 SC

1628 (paras. 15-16); Ajoy v. Khalid, A. 1981 SC 487 (paras. 7, 11, 15); see also Housing

Board of Haryana v. Haryana Housing Board Employee’s Union, (1996) 1 SCC 95 : AIR

1996 SC 434; Calcutta State Transport Corporataion v. Commissioner of Income-tax, West

Bengal, (1996) 8 SCC 758; Food Corporation of India Worker’s Union v. Food Corporation

of India, (1996) 9 SCC 439; U.P. State Cooperative Land Development Bank Ltd. V.

Chandra Bhan Dubey, (1999) 1 SCC 741 : AIR 1999 SC 753.

59. Ramana v. I.A.A.I., A. 1979 Sc 1628 (paras. 15-16); Ajoy v. Khalid, A. 1981 SC 487

(paras,. 7, 11,15).

60. S.R.T.C. v. Devraj, A. 1976 SC 1027 (paras. 14); Ujjam Bai v. State of U.P., (1963) 1

SCR 778 (969).

61. L.I.C. v. Escorts, A. 1986 SC 1370 (para. 100).

62. Workmen v. F.C.I., A. 1986 SC 670 (paras. 16, 17).

63. Mehta v. Union of India, A. 1987 SC 1086 (para.29) C.B.

 On the other hand, a recent Constitution Bench decision 64 has made an obiter that all

American decisions under the ‘State action’ doctrine may not be applied to India, owing to

different social conditions, and even where a private corporation becomes an agency of the

State under article 12, its private activities which have no social impact may not be subject

to the constitutional limitation of Fundamental Rights. Since such reservation has been

introduced for the first time, we should await its further development by the Court to see

whether this ride might operate as a retrograde step in the development of human rights.

It should be noted, in the present context, that the agency of State action doctrine has

been applied in several cases, 65 in Sri Lanka.

In Canada, the question has not yet been authoritatively settled. In the provincial

Courts, the prevailing view is that of S.32 (1)(b) of the Legislature and the Government, and

not against private persons or authorities even when they are exercising statutory powers.66

There are, however cases where it has been held that authorities set up by statute,

e.g., a municipality, 67 a hospital,68 or authorities which are controlled by the government,69

64. Wijetunga v. Ins. Corpn., (1985) LRC (Const.) 333 (338) ff.; Wijeratne v. Peoples’ Bank,

(1985) LRC (Const.) 349 (355) ff.; Gunarantne v. Peoples’ Bank, (1987) LRC (Const.) 383.

65. Kohn v. Globerman, (1986) 27 DLR (4th) 583 (598-99) (Man.); Re Blainey, (1986) 26

DLR (4th) 728 (Ont.); Re Bhindi, (1985) 20 DLR (4th) 386 (B.C.).

66. Re Hardie, (1985) 24 DLR (4th) 257 (267) (B.C.); Re McCutcneon, (1983) 147 DLR (3d)

193 (O.R.).

67. Vancouver Hospital v. Stoffman, (1985) 23 DLR (4th) 146 (151) (B.C.).

68. Cf. Bancroft v University of Toronto, (1986) 24 DLR (4th) 620 (626) (Ont.).

69. Black v. Law Soc., (1983) 144 DLR (3d) 439 (445).
or those which have the power to issue regulations having the force of law, 70 would come

within the purview of section 32 (1)(b).

Milestone of Public Interest Litigation in India

One of the earliest cases of Public Interest Litigation was that reported as Hussainara

Khatoon v. State of Bihar71. The case was concerned with a series of articles published in

prominent newspaper- the Indian Express which exposed the plight of industrial prisoners in

state of Bihar. A writ petition was filed by an advocate drawing the court’s attention to the

deplorable plight of these prisoners. Many of them had been in jail for longer periods than

the maximum permissible sentences for offences they had been charged with. The Supreme

Court accepted the locus standi of advocate to maintain the writ petition. Thereafter, a series

of cases followed in which the court gave directions through which ‘the right to speedy trial’

was deemed to be an integral and essential part of protection of life and personal liberty.

(i) Blinding of Prisoners in Bhagalpur Jail72

The blinding of prisoners in Bhagalpur jail brought out a revolutionary change in

attitude and thinking. The country was shocked to learn that barbarous practice of blinding

of under trial prisoners was still going on at Bhagalpur Central Jail in Bihar. The method

adopted for blinding the under trial prisoners was that a long needle used for stitching gunny

bags (Takwa) or barber’s nail cutter or cycle spoke was poked into their eyes and acid was

poured into eyes sometimes with the help of dropper, sometimes with syringe and

sometimes directly from bottle. The truth has a strange method of revealing itself inspire of

veil of secrecy behind which blinding of these prisoners were subjected to this most

70. (1980) 1 SCC 81; See Upendra Baxi, ‘The Supreme Court Trial: Undertrial & the

Supreme Court Cases (Journal), at P.35.

71. Ali Yadav v. State of Bihar, AIR 1982 SC 1008.

72. Bandhua Mukti Morcha v. UOI, AIR 1984 SC 802.

inhuman torture. This was the first success of new strategy and immediately provided it with

public acceptability. This is the beginning of modern strategy in which compensation be paid

for damage done to their eyes besides punishing the police officers found guilty of

committing atrocities upon them.

(ii) Bonded Labours73

Bandhua Mukti Morcha, an organization dedicated to the cause of release of bonded

labourers in country, sent a letter, subsequently treated as writ petition in Supreme Court

complaining that inspire of article 23 and Bonded labours system (Abolition) Act, 1976, the

practice was prevalent in stone quarries in Faridabad District where a large number of

labourers from Maharashtra, M.P., U.P. and Rajasthan were working as bonded labours

under the inhuman & intolerable conditions.

Bandhua Mukti Morcha case is a typical instance providing apathy of executives

towards implementation of social welfare legislations as also the potentiality of judicial

process to secure social justice who lived the life of slavery of free India. What could not be

achieved by entire machinery of central and state government said to be working for the

benefit of labourers was achieved by the process of the court. These cases also justify the

conclusion recorded by H. M. Seervai that if the broad view of locus standi which Bhagwati,

J. has rightly adopted in judge’s case was not accepted, grave injury to the public would go

unredressed.74

(iii) Protection to Child Labourers75

People’s Union for Democratic Rights, an organization devoted to protect human

rights, appointed three social scientists to personally study, investigate and report on

73. Constitutional Law of India (3rd Edn.) Vol 2 Para 16, 486.

74. People’s Union for Democratic Rts v. UOI, AIR 1982 SC 1473.

75. AIR 1991 SC 417.

conditions of such workers employed in various construction works in connection with

Asian Games at New Delhi. The report indicated employment of child labour and women

labour on less than minimum wages and employment of workers under conditions violating

various other labour laws. The organization addressed a letter to justice Bhagwati, enclosing

the report & requesting appropriate judicial action. The court held that there is violation of

article 24, 23 and 14.

In M. C. Mehta v. State of T.N.76, the complaint of exploitation of child labour by the

owners of match factories of Shivakasi in Tamil Nadu was made to the court. Court relied on

article 39(f) and 45 to ensure not only the minimum wage but also other facilities for

children. It also provided for insurance of such children and appointed a committee

consisting of District Judge, District Magistrate and public activist operating in area to

oversee proper implementation of directions contained in the judgment.

(iv) Plight of Women Prisoners77

Plight of women prisoners brought to the notice of court by Sheela Barse, a

journalist, by letter complaining of their horrible conditions whilst is police lock-up in the

city of Bombay. She wrote that she had interviewed 15 women prisoners in Bombay Central

Jail and 5 out of them told her that they had been assaulted by police, while in custody.

This case indicates the anxiety of court to provide protection to women prisoners in

police lock-up and for this purpose, court gave certain directions. 78 These directions not only

start the new human rights jurisprudence but show how the judicial power can attempt

reorganizing socio-economic relations by going beyond conventional limits of law. It is also

76. Sheela Barse v. State of Maharashtra, AIR 1983 SC 377.

77. Ibid at P. 382.

78. AIR 1983 SC 339

an example of judicial creativity aiming at security social justice to those who would not

otherwise get it.

(V) Moksha for Mentally ill Prisoners

In Veena Sethi v. State of Bihar, the court addressed itself to the illegal detention of

certain prisoners in Hazaribagh Central jail for almost two or three decades. The Petitioner

addressed a letter to justice Bhagwati which set the judicial process in motion. Considering

their long period of detention, court also directed the state govt. to drop cases pending

against these prisoners as it would be purely academic to pursue them.

(VI) Improvement in Railway facilities and Safety79

Railways are the most important means of transport. One Dr. P.Nalla Thampi, a

commuter in Kerala, field a writ petition in Supreme Court alleging violation of fundamental

Rights guaranteed under article 19 and 21 of constitution and claimed a writ of mandamus

against union of India for implementing reports of Kunzru, Wanchoo and Sikri Committees

appointed as fact finding commission to enquire and report about numerous train accidents

from 1970 onwards and for several other connected directions.

This case can be cited as an example illustrating the courts, concern of common man

desire to facilitate realization of his dream, for bright, peaceful & prosperous future.

In Ramnath Shankar v. Pando Pandhaya & others80 seems to have gone a step ahead

in the matter by directing the Railways to provide tilts & urinals at each Railway stations

situated between Victoria Terminus and Diwa Station by employing the ‘Pay and Use

system’ and also requiring the Railway Authorities to ensure that these facilities would be

maintained in good shape and kept clean. The court held that ‘it would be public good if

79. Dr. P. Nalla Thapi v. UOI, 1983 (4) SCC 598.

80. AIR 1987 Bom 98.

Railways maintain toilets and urinals on suburban railway stations and adopt the principle of

‘Pay and Use’.

(VII) Law Relating to Inquiry Suffered by leakage of Gas

The concern of Supreme Court for victims of such tragedies is fully illustrated in its

judgment in M.C.Mehta v.UOI.81 On 4th Dec, 1985, a major leakage of oleum Gas took place

from one of the units of Shri Ram Food’s & Fertilizers Industries owned by Delhi cloth

mills, a public limited co. and affected large number of persons, both, workmen and public.

It was claimed that an advocate practicing in this Hazari Courts at Delhi also died on

account of inhalation of escaped oleum Gas. The Petitioner approached the Supreme Court

by way of Public Interest Litigation raising seminal questions concerning the true scope and

ambit of article 21 and 32. The judgment passed in this case proves how Public Interest

Litigation helps in solving the problems of weaker sections that would otherwise not be able

to get justice promptly.

(VIII) Other Milestones

If a person is wrongfully incarcerated without any authority, courts have been issuing

writs to set him at liberty. Even before constitution, orders in nature of habeas corpus were

being issued under section 491 of CrPC. The jurisdiction of civil courts in such matters had

been doubtful as state had always claimed immunity from payment of any compensation

under the pretext of exercise of sovereign function. In Makhan Singh v. State of Punjab 82,

Supreme Court, for the first time, recognized the right of person to claim compensation for

illegal detention. The majority view was that such a claim has to wait till emergency in the

country was lifted. The majority view in Makhan Singh’s case was summoned in A.D.M.

81. (1987) 1 SCC 395

82. AIR 1964 SC 381

Jabalpur v. Shivkant Shukla83 to hold that if any detained person finds that the official

detaining him had no such authority, such person can have his remedy for false

imprisonment after the emergency was lifted and constitutional right to personal liberty was

restored. The subsequently activist approach and concern over Supreme Court to the

suffering of poor and down-trodden brought about revolutionary change in this judicial

thinking. Rudal Shah v. State of Bihar,84 is the landmark decision in this respect. The

Petitioners were languishing in jail for more than 14 years even after their acquittal and

approached the Supreme Court claiming liberty and compensation for illegal incarceration.

Though the Supreme Court expressed that proceeding under article 32 cannot be

substituted for the infringement of rights and obligations which can be enforced

efficaciously through ordinary process of court, it helped that it was not powerless in

granting compensation to person deprived of his fundamental right. The state was

accordingly directed to pay a sum of Rs. 35000/- as compensation for illegal arrest. This

case, therefore, paved the way for development of new compensatory jurisprudence. Though

the damages are ordinarily to be computed and awarded by civil court and depend on variety

of factors, the court seems to have given a go bye to most of these considerations. In

Sebastian Hongray v. UOI.85 In this case, a writ of habeas corpus issued by court was not

obeyed. Counter affidavits were filed to show that the said person was not traceable. The

court took exception to this plea and awarded an amount of Rs. 1 Lac as exemplary cost on

respondents thereby further strengthening the law laid in Rudal Shah’s case. The aforesaid

amount for torture, agony and mental stress that they had to suffer and was awarded as a

measure of exemplary cost. Since two persons whom the court had directed to be released

83. AIR 1976 SC 1206.

84. AIR 1983 SC 1083.

85. AIR 1984 SC 1025.

by issuing a writ of Habeas corpus were said to be missing, court observed that it is

reasonable to infer that both of them have met with unnatural death.

The message of Rudal Shah and Hongrey seems to have been carried forward in

Bhim Singh v. State of J&K86 Relying on these cases, court held that it has the right to award

monetary compensations by way of exemplary cost, as according to it, mischievous or

malicious invasion may not be washed away by his being set free. The court according

awarded a sum of Rs. 50000/- as compensation to Bhim Singh.

People’s Union for Democratic Rights v. State of Bihar87 only shows that court is not

prepared to give up this new remedy developed by it. The petitions, an organization

committed to upholding of fundamental rights of citizens, had moved the court under article

32. It noted that the arrest and release of few of dead people had been compensated by state

to the tune of Rs 10000/-. It found no justification as to why the said compensation has not

been given in every case of death or injury. The court, therefore, directed that without

prejudice to the just claim or compensation, that may be advanced by the relatives of victims

or by the injured persons themselves, for every injured person compensation of Rs.20000

and for every injured person compensation of Rs. 5000/- shall be paid, within 2 months from

the date of order. Though the court gave no detailed reasons why it was issuing such a

directions in exercise of powers under article 32, it is clear that it enforced articles 14 and 21

to award compensation to each victim or relative of dead person.

Problems like Environment pollution88 allotment of house site to homeless89,

86. AIR 1986 SC 494

87. AIR 1987 SC 355.

88. AIR 1988 SC 2187.

89. AIR 1988 SC 408.

cleaning of Ganga90, Prevention of starvation death due to poverty91 Sexual exploitation of

blinds92 and welfare of children in jails93 and Preventing glorification of Sati94 have moved

court’s conscience and it has shown its willingness to came out to provide guidelines to

solve them. In Parmanand Katra v. UOI95, the court regretfully noted the plight of injured

persons in criminal case and gave directions of far reaching importance. The court was faced

with report published in Hindustan Times under the caption-Law helps the injured to die-and

re-acted to it rather sharply by observing that a doctor at government hospital positioned to

meet the state’s obligation to preserve and protect life, is duty bound to extend medical

assistance to preserve life. They must attend to patient immediately and provide him

necessary help. The patient whether he be an innocent person or be a criminal liable to

punishment under laws of the society, it is the obligation of those who are in-charge of

health of community to preserve life so that the innocent may be protected and guilty may

be punished.

In Kapila Hingorani v. State of Bihar 96 Supreme Court noted the plight of employees

of public sector unstatutory authorities in the state of Bihar. In a letter to Supreme Court, an

advocate of Supreme Court, Kapila Hingorani in many incidents of death owing to

starvation or malnutrition due to non-payment of salaries of workers working in these

corporate sectors and also held the state of Bihar liable.

90. AIR 1988 SC 1115.

91. AIR 1989 SC 677.

92. AIR 1989 SC 1783.

93. AIR 1989 SC 1276.

94. AIR 1989 SC 1280.

95. AIR 1989 SC 2039.

96. (2003) 6 SCC 1.

Mechanism for Protection of Human Rights through Public Interest Litigation

Features of public interest litigation through its mechanism, the courts seek to protect

human rights in the following ways-

1. By creating a new regime of human rights by expanding the meaning of fundamental

right to equality, life and personal liberty. In this process, the right to speedy trial, free legal

aid, dignity, means and livelihood, education, housing, medical care, clean environment,

right against torture, sexual harassment, solitary confinement, bondage and servitude,

exploitation and so on emerge as human rights. These new re-conceptualized rights provide

legal resources to activate the courts for their enforcement through public interest litigation.

2. By fashioning new kinds of relief’s under the court’s writ jurisdiction. For example,

the court can award interim compensation to the victims of governmental lawlessness. This

stands in sharp contrast to the Anglo-saxon model of adjudication where interim relief is

limited to preserve the status quo pending final decision. The grant of compensation in

public interest litigation matter does not preclude the aggrieved person from bringing a civil

suit for damages. In public interest litigation cases the court can fashion any relief to the

victims.

3. By judicial monitoring of state institutions such as jails, women’s protective homes,

juvenile homes, mental asylums and the like. Through judicial invigilation, the court seeks

gradual improvement in their management and administration. This has been characterized

as creeping jurisdiction in which the court takes over the administration of these institutions

for protecting human rights.

4. By devising new techniques of fact finding. In most of the cases the court has

appointed its own socio-legal commissions for inquiry or has deputed its own official for

investigation. Sometimes it has taken the help of National Human Rights Commissions or
Central Bureau of Investigation or experts to inquire into human rights violations. This may

be called investigative litigation.

Social Justice through Public Interest Litigation

The Supreme Court has played an active role in attaining social justice through the

mode of public interest litigation. In Hussainara Khatoon v. State of Bihar 162 the public

interest litigation was filed by an advocate on the basis of a news report highlighting the

plight of thousands of undertrials languishing in various jails in Bihar. This litigation

exposed the failure of criminal justice system and led to a chain of proceedings resulting in

the release of over 40000 undertrial prisoners. The right to speedy trial was recognized as

fundamental rights under article 21 of constitution. Bandhua Mukti Morcha v.UOI163, the

Supreme Court considered the plight of bonded labourers engaged in stone quarries of

Haryana. An action in the form of PIL was initiated for identification, release and

rehabilitation of bonded labourers. The court issued direction to the Haryana government in

this regard, which were updated from time to time to meet the end of justice. In Sheela

Barse v. UOI164, a public interest litigation was filed to assist the release of juveniles and

asked for the information regarding the number of such juveniles who are placed in jails. In

162. AIR 1979 SC 1360.

163. (1984) 4 SCC 161.

164. AIR 1986 SC 1773.

PUDR v. Commissioner of Police165, the attention of Supreme Court was drawn to the police

atrocities committed against poor people who were forcibly taken to the police station in

Delhi to work there without wages. As a consequence of such atrocities, one person died.

While granting compensation package of Rs. 75000/- to the legal representatives of the

deceased, the court directed the recovery of same from erring policeman. In Chiranjit Kaur

v. UOI166, the petitioner’s husband was major in Army died while in service in mysterious

circumstances. No proper investigation was made regarding the cause of his death; his case

was handled with culpable negligence and cynical indifference by the authorities concerned.

It was held that the widow and her minor children were entitled compensation of Rs 6 lakh

as well as to the special family pension and the children allowance according to the relevant

rules. In SAHELI v. Commissioner of Police167, the court directed the government to pay Rs.

75000/- as compensation to the mother of victim who died because of beating by police

officer. The writ petition was filed by the women and Civil Rights Organization known as

SAHELI on the behalf of the mother of the victim.

In Arvinder Singh Bagga v. State of U.P 168, the Supreme Court awarded

compensation of Rs 10000/- to the victim of police atrocities. In this case, the police had

arrested married women on the pretext of her being a victim of abduction and rape. She was

threatened and commanded to implicate her husband and his family in case of abduction and

forcible marriage thereafter. The police officer subjected her to physical, mental and

psychological torture to make her submit to the demand of police and to abandon her legal

165. (1989) 4 SCC 730.

166. (1994) 2 SCC 1.

167. AIR 1990 SC 513

168. (1994) 4 SCC 602.

marriage. In Rudal Shah v. State of Bihar169, court awarded Rs. 30000/- as compensation to

the petitioner who had to remain in jail for 14 years because of irresponsible conduct of state

authorities.

In Bhim Singh v. State of J&K170, petitioner was awarded compensation of Rs.

50000/- for violation of constitutional rights.

Nilabati Behra v. State of Orissa171, the deceased aged about 22 years was taken into

police custody and beaten to death and then was thrown on railway track which after

managed to escape. The mother of the deceased sent letter to Supreme Court alleging

custodial death of her son and claimed compensation on ground of violation of article 21.

The court treated the letter as a writ petition under article 32 and impleaded the state of

Orissa, the police ASI and the concerned constable to pay Rs. 1,50000/- as compensation to

the deceased’s mother and further a sum of Rs.10000/- as costs to the Supreme Court legal

aid committee. The court however, clarified that this will not affect the petitioner’s right to

claim compensation on other proceedings in which case the amount awarded by the court

would be adjusted.

Abuse of Public Interest Litigation

Public interest litigation is a weapon, which has to be used with great care and

circumspection and the judiciary has to be extremely careful to see that behind the beautiful

will of public interest, an ugly private malice, vested interest and /or publicity seeking is not

lurking. It is to be used as an effective weapon in the armory of law for delivering social

justice to citizens. The petition of such persons should be thrown out at the threshold and in

appropriate cases exemplary costs should be imposed. Public interest litigation cannot be

169. (1983) 4 SCC 141.

170. (1985) 4 SCC 677.

171. (1993) 2 SCC 746.

invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If

such petitions under article 32 were entertained, it would amount to abuse of process of the

court, preventing speedy remedy to other genuine petitioners from this court personal

interest cannot be enforced through the process of this court under article 32 of the

constitution in the garb of public interest litigation. A person invoking the jurisdiction of this

court under article 32 must approach this court for the vindication of fundamental rights of

affected persons and not for the vindication of his personal grudge or enmity. It is the duty of

this court to discourage such petitions and to ensure that the course of justice is not

obstructed or polluted by unscrupulous litigants by invoking the extra ordinary jurisdiction

of this court for personal matters under the garb of public interest litigation. It is thus clear

that only a person acting bonafide and having sufficient interest in proceeding of public

interest litigation will alone have a locus standi and can approach the court to wipe out the

tears of the poor and needy, suffering from violation of their fundamental rights, but not a

person for personal gain or private profit or political motive or any oblique consideration.

Similarly, a vexatious petition under the colour of public interest litigation brought before

the court for vindicating any personal grievance deserves rejection at the threshold. It must

be noted that once the court has accepted the public interest litigation, its withdrawal is not

permissible unless the court permits the same. Thus, the petitioner is not entitled to withdraw

his petition at his sweet will unless the court sees reason to permit withdrawal. In granting

the permission the court would be guided by considerations of public interest and would also

ensure that it does not result in abuse of process of law. Thus a writ petitioner who comes to

the court for relief in public interest must come not only with clean hands like any other writ

petitioner but also with clean heart, clean mind and clean objective.
Conclusion

Public interest litigation is working as an important instrument of social change. It is

working for the welfare of every section of society. It’s the sword of every one used only for

taking the justice. The innovation of this legitimate instrument proved beneficial for the

developing country like India. Public interest litigation has been used as a strategy to combat

the atrocities prevailing in society. It is an institutional initiative towards the welfare of

needy class of the society. In Bandhua Mukti Morcha v. UOI, the Supreme Court ordered for

release of bonded laborers. In Murli S. Dogra v. UOI, the Supreme Court banned smoking in

public places. In a landmark judgment in Domestic Working Women’s Forum v. UOI, the

Supreme Court issued guidelines for rehabilitation and compensation for the rape on

working women. In Vishaka v.State of Rajasthan, the Supreme Court has laid down

exhaustive guidelines for preventing sexual harassment of working women in place of their

work.

Public interest litigation, all over the country, have not taken very kindly to such

court decisions. They do fear sound the death-knell of the people friendly concept of public

interest litigation. However, bonafide litigants of India have nothing those public interest

litigation activists who prefer to file frivolous complaints will have to pay compensation to

then opposite party a welcome move because no one in the country can deny that even

public interest litigation activists should be responsible and also notable here that even the

Consumers Protection Act, 1986 has been amended to provide compensation to parties in

cases of frivolous complaints made by consumers. In any way, public interest litigation now

does require a complete restructuring.

It is humbly submitted that public interest litigation is still is in experimental stage.

Many deficiencies in handling the kind of litigation are likely to come on the front. But these

deficiencies can be removed by innovating better techniques. In essence, the public interest
litigation develops a new jurisprudence of the accountability of the state for constitutional

and legal violations adversely affecting the interest of the weaker elements in the

community. Overuse and abuse of public interest litigation can only make it stale and

ineffective. Since it is an extraordinary available at a cheaper cost to all citizen of the

country, it ought not to be used by all litigants as a substitute for ones or as a means to file

frivolous complaints. We may end with the hope once expressed by Justice Krishna Iyer,

“the judicial activism gets its highest bonus when its orders wipe some tears from some

eyes”.172

172. www.legalserviceindia.com.